Meaning and Legal Position in Thoughts of Syeikh Muhammad

Arsyad Al - Banjari

Rakhmat Nopliardy, Jarkawi

Islamic University of Kalimantan Muhammad Arsyad Al Banjari, Banjarmasin

Keywords: The Meaning of Law. Legal Stance, Thought Sheikh Muhammad Arsyad Al Banjari

Abstract: This article aims to analyze with the juridical discriptical method of the meaning and position of law. The

text of Sheikh Muhammad Arsyad Al Banjari (1122 H-1227 H / 1710 M-1812 AD) in the book of Sabîl al-

Muhtadîn li at-Tafaqquh fî Amr ad-Dîn has a philosophical dimension , and history, no one has previously

examined the meaning and position of the law in thought of Sheikh Muhammad Arsyad Al Banjari as the

basis of the formation of law by the Institution of the Sultanate of Banjar around the XVIII-XIX century.

The text of Sheikh Muhammad Arsyad Al Banjari in the field of syari'ah, as well as the influence and

practice of Sheikh Muhmmad Arsyad Al Banjari in the Sultanate of Banjar during the reign of Sultan

Tahmidullah bin Sultan Tamjidullah able to surpass the institution of the sultanate of Banjar, so the Sultan

uses the script of thought Sheikh Muhammad Arsyad Al Banjari in running the imperial government in

terms of achieving justice and the welfare of the people at that time. One of the texts even in the time of the

Sultanate of Adam was used as a reference as the forerunner of the birth of the Sultan Adam's Law and until

now it is mentioned in the Marriage Law No. 01 of 1974 article 35.

1 INTRODUCTION

Y Study of Meaning and Legal Position "The

thought of Sheikh Muhammad Arsyad Al Banjary in

the Sultan of Banjar administration system" is a field

of law study, especially the science of constitutional

law, which is indirectly related to philosophical,

political, and historical point of view.

In the perspective of the study of law, there are

important things that need to be explained first is:

what or what will be studied from the Thoughts of

Sheikh Muhammad Arsyad Al Banjary in the system

of the Sultan of Banjar ". Is the script or the contents

of the action of Sheikh Muhammad Arsyad Al

Banjary in the administration system of Sultan

Banjar ", and / or both. According to the author, both

are equally important because: on the one hand, 'The

thought of Sheikh Muhammad Arsyad Al Banjari in

the system of the Sultan of Banjar administration' is

a political act that creates a new law

(rechtsscheppen). On the other hand, the 'text' itself

serves as a form of legal proof (rechtsvaststellen) on

the sultan's policy of Banjari. This is in line with

what will be extracted from this study is the essence

and existence of the Text of Thought Sheikh

Muhammad Arsyad Al Banjary in the government

system of Sultan Banjar "in the Sultanate of Banjar

Sultanate.

The legal issues that arise are: what is the legal

meaning of the Thoughts of Sheikh Muhammad

Arsyad Al Banjari in the system of the Sultan of

Banjar's government "; The thought of Sheikh

Muhammad Arsyad Al Banjari in the Sultan of

Banjar government system "is a political or legal

action; Is the Text of Thought Sheikh Muhmmad

Arsyad Al Banjari in the Sultan of Banjar

administration system "can be qualified as" norm

"(legal norm); What is the legal basis of the binding

force of the Text of Thought Sheikh Muhammad

Arsyad Al Banjari in the system of the Sultan of

Banjar "; Why the Sultanate of Banjar and the

Indonesian Ulama especially the people of South

Kalimantan respects, obeys, and implements the

values, principles and principles contained in the

text of the Thinking Sheikh Muhammad Arsyad Al

Banjari; as well as the extent of the substance of the

Text of Thought Sheikh Muhammad Arsyad Al

Banjari in the system of the Sultan of Banjar

administration "has been used as a spirit in the

organization of national and state life in the

Sultanate of Banjar at that time.

Nopliardy, R. and Jarkawi, .

Meaning and Legal Position in Thoughts of Syeikh Muhammad Arsyad Al - Banjari.

DOI: 10.5220/0009022700002297

In Proceedings of the Borneo International Conference on Education and Social Sciences (BICESS 2018), pages 465-476

ISBN: 978-989-758-470-1

Copyright

c

465

On the other hand, the problem of the legal

position of the Text of Thought Sheikh Muhammad

Arsyad Al Banjari in the system of Sultan Banjar

administration "is equally important to be examined

on this occasion. Conceptually, whether the Text of

Thought Sheikh Muhammad Arsyad Al Banjari in

the Sultan of Banjar administration system "can be

qualified as Grundnorm in the sense of Hans Kalsen

or more precisely as staatsfundamentalnorm in the

sense of Hans Nawiasky.

Practically speaking, it is also questionable

where the legal position of the text of the Thoughts

of Sheikh Muhammad Arsyad Al Banjari in the

system of the Sultan of Banjar 's government is: Is in

the realm of the material legal source or the source

of formal law; then if linked in the perspective of the

provisions of the laws and regulations prevailing in

the time of the Sultanate of Banjar at that time,

where is the legal position of the Thoughts of Sheikh

Muhammad Arsyad Al Banjari in the system of the

Sultan of Banjar's administration? as well as the

extent to which the implications of the meaning and

legal position of the Thought Sheikh Muhammad

Arsyad Al Banjari in the government system of the

Sultan of Banjar "to the implementation of life of

nation and state in the Sultanate of Banjar at that

time.

Back to the question of the legal meaning of

Sheikh Muhammad Arsyad Al Banjari in the system

of Sultan Banjar administration ". To deepen the

meaning of the thought of Sheikh Muhammad

Arsyad Al Banjary is essential, it is not enough just

to read the text of Thought Sheikh Muhammad

Arsyad Al Banjari in the system of the Sultan of

Banjar ". Rather it must be seen the historical

context behind it, as well as the factors that

influence the text of the Thinking Sheikh

Muhammad Arsyad Al Banjari in the system of the

Sultan of Banjar administration "made the policy of

Sultan Banjar.

In the context of a more holistic study, the

values, principles and principles of Islam from

Sheikh Muhammad Arsyad Al Banjari in the system

of the Sultan of Banjar administration "can only be

known that the meaning of the text is related to the

substance of the Qur'an and hadith.

The author performs an integrated interpretation

(integrated) between text, context, and contextual.

This is in line with this method of interpretation in

philosophy known as the "Hermeneutics" method (

Whereas to know where the position of the law

of Sheikh Muhammad Arsyad Al Banjari in the

system of the Sultan of Banjar ", theoretically the

least possible approach with two points of view:

First, in the perspective of Stufenbautheorie or

Stufenbau des Rechts Hans Kelsen. It is subdivided

into two theories of "the theory of the origin of the

source of law" which is always associated with the

terminology of Grundnorm and the "legal ladder

theory" in relation to a hierarchical order of the laws

of a country. For the latter, by Hans Nawiasky called

the theory of Die Theorie vom Stufenaufbau der

Rechtsordnung . Second, it refers to the theory of the

source of law, namely the source of material law and

the source of formal law.

The side of philosophical study of some of the

above problems lies in ideas containing the values of

"truth" and "justice" in bringing about prosperity and

justice. Or with the reverse assertion that all forms

of the ideology are contrary to the values of faith,

therefore it becomes a common enemy.

Epistemology about: what is the meaning of zakat

thought Sheikh Muhammad Arsyad Al Banjari; what

is the essence of the empire, why the empire exists;

or where the empire came from. This problematic

thing is difficult to ascertain before, although the

meaning of productive zakat thought, custom of

abstinence, tabala, Sheikh Muhammad Arsyad Al

Banjari and the factors of sultanate policy can be

studied and still open to debatable.

Another philosophical reflection of the meaning

of the thought of Sheikh Muhammad Arsyad Al

Banjari in the area of the Banjar sultanate is perhaps

traceable from the conception of man as an

individual being (creature of God) who has been

given freedom in making his choice responsibly . As

a nation, the people of the sultanate of Banjar also

attached the right to self-determination (self-

determination) as a sultanate.

The side of his political studies, lies in the reality

that the thought of Sheikh Muhammad Arsyad Al

Banjari is a single political act that expresses his

opinion as a cleric in the Sultanate of Banjar. The

problem is where to find the source of political

legitimacy for Sheikh Muhammad Arsyad Al

Banjari as a cleric at that time so that his thoughts

became the source of law by the Sultan in arranging

the rules and policies of the Sultanate at that time .

While the side of historical studies is whether the

thought of Sheikh Muhammad Arsyad Al Banjari is

the result of the study that during it was done on the

way to Mecca and Egypt. As to whether the

conception of the thought of Sheikh Muhammad

Arsyad Al Banjari built in the fight against

conventional thinking earlier at that time.

Departing from some of the main issues (main

problems) above, according to the writer is in need

of a deep understanding so that this research / study,

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466

given the juridical, meaning and legal position of the

Text of Thought Sheikh Muhammad Arsyad Al

Banjari in the system of government Banjar

Kesultan "until now is still used by the community,

compared to now the role of ulama is only for the

purpose of da'wah in society, while in the present

government system the role of ulama has not

significant meaning in the life of nation and state.

Similarly, at the implementation level, there are

occasional government policies that are still far from

the ideals and spirit of justice and prosperity. The

authors' expectations of this research study can be

one of the links for on going legal reform efforts

being undertaken by various parties. Sheikh

Muhammad Arsyad Al Banjari wrote the book of

Sabil al-muhtadin to meet two needs: cultural needs

and structural needs. Cultural needs, because Sheikh

Muhammad Arsyad Al-Banjary sees the existence of

the emptiness of the fiqh book Malay language in

the country while the structural needs, the request of

the sultan Tahmidullah bin Sultan Tamjidullah to

Sheikh Muhammad Arsyad Al Banjari to write

books of jurisprudence in Malay. The Book of

Sabilal Al Muhtadin is intregrative between the

Sultan's wishes with the wishes of al-Banjari as the

Application of Law and Islamization to be the

guideline of the life of a country. The legal product

that was built by Sheikh Muhammad Arsyad Al

Banjari is good if it is felt the effect by the life of the

society and keep the law which still applied still

relevant in Banjar society until now.

In the perspective of Kelsen's theory of "legal

origin" ; value, soul, and spirit contained in the Text

of Sheikh Muhammad Arsyad Al Banjari Thinking

of his legal position as the basic norm. In the

perspective of Nawiasky's "legal ladder" theory, his

legal position as Staatsfundamentalnorm. Whereas

in the perspective of the theory of "source of law":

Substantively, the existence of Sheikh Muhammad

Arsyad Al Banjari Script can be categorized in the

source of material law; Formally or in terms of its

legal form (after being formalized into the Rules of

the Sultanate), the Text of Sheikh Muhammad

Arsyad Al Banjari's Thought is the foundation for

the establishment of the positive law of the sultanate.

The law offered is to re-actualize the meaning of

freedom of thought of independent and modern

Sheikh Muhammad Arsyad Al Banjari without the

influence and pressure of power both internal and

external, renewed policy conceptions of the

institution of sultanate, sovereignty and thought of

ulama, and the source of law of the institution of the

sultanate.

Referring to Ibn Khaldun's thought that "the

people will follow the religion and customs of their

kings" . The existence of Islamic political

institutions is a strong indication that Islamic law

has been applied in the life of the archipelago at that

time, the kings together with the ulama encouraged

their subjects to follow the rules and regulations set

forth within the scope of royal political institutions

and to enforce Islamic law as positive law .

The Banjar Sultanate of XVIII-XIX centuries

which in its time was born a scholar named Sheikh

Muhammad Arsyad Al Banjari 1710-1812M author

of the book Sabîl al- Muhtadîn li at-Tafaqquh fî Amr

ad-Dîn. was born in the village of Lok Gabang on

Thursday 15 Safar 1122 H, coinciding March 19,

1710M.

Regarding the text on sheikh Muhammad Arsyad

Al Banjari can be said to be still in a marginal

position in Islamic historiography in Indonesia, the

existing form of writing is limited to a discussion

centered on Sheikh Muhammad Arsyad Al Banjari,

not in the relationship and position of ulama in

general. Although Sheikh Muhammad Arsyad Al

Banjari there are some similarities with the position

of ulama in Javanese and Sumatran societies, but in

it is also tucked uniqueness due to various factors

that surround it.

The name of Sheikh Muhammad Arsyad Al

Banjari is attributed to his origins from Banjar

(Borneo or South Kalimantan today). The term

Banjar itself is a brief mention for Banjarmasin. A

great Sultanate that once stood in Borneo. The term

Banjarmasin is called for Kampung Oloh Masih or

Orang Melayu . The origin of Banjar itself seems to

be the second wave of Malays who migrated to

Borneo from Sumatra in the past. The first wave was

the Malays who had already settled in Borneo or

Kalimantan now. The people of this first wave were

then pressed by the arrival of the Banjar people.

They (the first wave people) then shifted into the

interior, which later called the Dayaks .

Sheikh Muhammad Arsyad Al Banjari as a study

in this study due to several considerations. First, he

is an independent and modern mujtahid who gives

the spirit to make ideas and thoughts in

implementing Islamic law in the life of a new state

without having to tie to an old heritage that is less

suited to the era at that time; second, he is a

productive scholar with his various works in the

field of fiqh and ushûl fiqh, da'wah, politics,

education, Islamic economics, tasawuf, third, insight

fiqh Sheikh Muhammad Arsyad Al Banjari The

flood that leads to the attitude of tawasut (moderate)

and realistic to the changes of time so that

Meaning and Legal Position in Thoughts of Syeikh Muhammad Arsyad Al - Banjari

467

acceptable modern society, fourth, able to

communicate contemporary problems with the way

of thinking modern people, fifth, fatwa-fatwas have

scientific weight and very influential in the Islamic

world, , as an advisor to Sultan Sheikh Muhammad

Arsyad Al Banjari contributed many legal thoughts

to the sultanate of Banjar so the sultan ordered

Sheikh Muhammad Arsyad Al Banjari to make the

book as a guide for life especially Banjar and Banjar

people in general and the book is called Sabîl al-

Muhtadîn li at -Tafaqquh fî Amr ad-Dîn, the book in

the Sultanate of Adam used as a reference as the

forerunner of the birth of the Law of Sultan Adam

and became one of the reference Compilation of

Islamic Law in Indonesia.

Understanding the meaning and legal position of

Thought Sheikh Muhammad Arsyad Al Banjari uses

several theories, among: Hermeneutics Theory,

Stufenbau des Rechts Theory and Theory of Law

Resources, as a knife of analysis.

To meet the two demands: the demands of

cultural needs and structural needs, cultural needs,

because Sheikh Muhammad Arsyad Al Banjari sees

the existence of a vacuum of Malay-speaking

jurisprudence in the country while the structural

need, demand from Sultan Tahmidullah bin Sultan

Tamjidullah (1761-1801 M) to write the book of

jurisprudence of Malay is the Book of Sabil al-

Muhtadin li at-Tafaqquh fiAmr ad-Din. The book is

a reference of Islamic law in the sultanate of Banjar

which nuanced Islamization but was opposed in the

Dutch colonial era. The object of investigation in

this research is Sheikh Muhammad Arsyad Al

Banjari Textile Thoughts, while the main problem to

be solved is about the meaning and position of law

of Sheikh Muhammad Arsyad Al Banjari Thoughts

in the royal system of Banjar Sultanate.

Based on the object of research above, the type

of research used is "normative legal research", with

approaches: "juridical-philosophical", "historical",

and "comparative law". The focus examined in the

normative legal research method is to examine the

rules and legal principles associated with the

meaning and position of the law. Thought Sheikh

Muhammad Arsyad Al Banjari and its implications .

While the approach method used with the juridical-

philosophical Approach. The juridical approach is

used to study the meaning of law and the legal

position of the Text of Thought Sheikh Muhammad

Arsyad Al Banjari in the constitutional system of the

Sultanate of Banjar. While the philosophical

approach that the author means is to use

"hermeneutics". The philosophy of hermeneutics is

the philosophy of the nature of things to understand

or to understand something, namely philosophical

reflection that analyzes and interprets a text

(including the Text of Sheikh Muhammad Arsyad Al

Banjari). Things or activities understand something

essentially the same as the activity of interpreting .

Historical approach, used to examine the essence

and existence of the text of Sheikh Muhammad

Arsyad Al Banjari Thought in the context of its legal

history. This means in what kind of atmosphere

Thesis Sheikh Muhammad Al-Arya Arsyad Banjari

was prepared, and what the motivation and purpose

of the Sultanate of Banjar makes the text becomes

the policy of the Sultanate of Banjar in running the

life of the Sultanate of Banjar.

The legal history approach approach must also

meet objective, logical, and honesty requirements .

Comparative legal approach. In order to evaluate

and find the meaning of law and correctly

positioning the legal position of the Text of Thought

Sheikh Muhammad Arsyad Al Banjari in the

archipelago system of the archipelago at that time.

2 PROBLEM IDENTIFICATION

We Based on the description on the background, the

problem identification is formulated as follows:

a. What is the legal meaning of the text of the

Thoughts of Sheikh Muhammad Arsyad Al

Banjari, so that it can be qualified as the basis for

the formation of the law?

b. How is the legal position of the text of Thought

Sheikh Muhammad Arsyad Al Banjari in the

system of the Sultanate of Banjar?

c. How far the implications of the meaning and

legal position of the Text of Thought Sheikh

Muhammad Arsyad Al Banjari against the

implementation of the state life in the Sultanate

of Banjar?

3 PURPOSE AND PURPOSE OF

RESEARCH

The purpose of this study is to examine critically to

find a clear and precise conception of the meaning of

law and legal standing Thought Sheikh Muhammad

Arsyad Al Banjari in the system of the Sultanate of

Banjar. With this conception, it is further expected

to find the meaning of law and to set clear

benchmarks on the Text of Thought Sheikh

Muhammad Arsyad Al Banjari as the foundation of

the formation of positive law that time in the

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468

Sultanate of Banjar. Subsequently positioned or

precisely placed the legal position of the Text of

Thought Sheikh Muhammad Arsyad Al-Banjari,

both in the theoretical level (Stufenbau's theory,

Kelsen-Nawiasky and the theory of the source of

law) and in the practical level developed in the

monarchical system of state administration at that

time.

The usefulness of this research is academically,

the findings can be used as a basic reference for the

development of theoretical law, especially in the

legal sciences normative and especially on the

science of law of the country. Practically, the

findings can be a source of inspiration for all

government and community organizers in realizing

the aspirations of a nation and a just state in an

essential.

4 DISCUSSION

We From the above theme, there are at least two

variables, namely: "The Meaning of the Law of

Thought Thoughts of Sheikh Muhammad Arsyad Al

Banjari" and "The Legal Position of the Text of

Thought Sheikh Muhammad Arsyad Al Banjari" as

independent variable. "State System of Republic of

Indonesia" as dependent variable, but there is still

intervenning variable that is "Legal Implication of

Thoughts of Sheikh Muhammad Arsyad Al Banjari".

Then in terms of "Meaning and Legal Status of the

Text of Thought Sheikh Muhammad Arsyad Al

Banjari" is contained the meaning of the meaning of

law and position the law. While the word "law" in

this sentence is more emphasis on aspects of study

or legal analysis that is within the framework of the

analysis of theology of state law.

The term "The Text of Thought Sheikh

Muhammad Arsyad Al Banjari" is referred to here,

such as the manuscript of zakat, the custom of

abangan (treasure gono-gini), Tabala (coffin) in the

Book of Sabîl al-Muhtadîn. To understand the

meaning (essence and soul), it is not enough just to

see in terms of the formulation of his text, but must

be seen in the context of what situation he was born,

what his motivation, and how far the substance of

the text of thought Sheikh Muhammad Arsyad Al

Banjari has been contextualized in the life of the

nation and state in the government of the Sultanate

of Banjar at that time.

Based on the above description, it can be

described the relevance of variables studied in the

form of research paradigm as follows:

Figure 1: Paradigm on the Meaning of Law and Legal

Position

The theoretical foundation used as a blade-

analysis and to help solve basic problems in advance

is: the theory of "Hermeneutics" as the grand theory.

The theory of "Stufenbau" (Kelsen and Nawiasky)

as middle-range theory, and the theory of "Source of

Law" as applied theory. This discussion also

elaborates further on the theories referred to in

analyzing the meaning and thought of Sheikh

Muhammad Arsyad Al-Banjari about the zakat in

the Book of Sabîl al-Muhtadîn as his ijtihad.

Broadly speaking the understanding of

hermeneutic theory can be known by two

approaches: "Hermeneutics as the foundation of

philosophy of law science" and hermeneutics as "a

method or way of interpretation ."

First, hermeneutics as the foundation of

philosophy of law science. The philosophy of

hermeneutics is the philosophy of the nature of

things that understand or understand something,

namely philosophical reflection which analyzes the

conditions of possibility for the experience of

thinking and association of Sheikh Muhammad

Arsyad Al Banjari with reality, including the events

of understanding and / or interpretation. The

philosophy of hermeneutics focuses on all things

thought about Sheikh Muhammad Arsyad Al Banjari

about productive Zakah, Customs of

abstinence(treasure gono gini or Adat Perpantangan)

and Tabala which has meaning as far as it can be

revealed that he called language and understandable.

In general, the hermeneutical philosophical object is

a text that can be tangible writing, painting,

behavior, natural events, and so forth . In this case

according to the author's thought that the text of the

Thinking Sheikh Muhammad Arsyad Al Banjari is

one of the objects reflection philosophy

hermeneutics.

Second, hermeneutics as a method of

interpretation. The process of interpreting the

Meaning and Legal Position in Thoughts of Syeikh Muhammad Arsyad Al - Banjari

469

thought of Sheikh Muhammad Arsyad Al Banjari

about productive zakat in the Book of Sabîl al-

Muhtadîn takes place in the process of

hermeneutical spiral circle (hermeneutische zircel),

ie movement back and forth between parts or

elements and the whole, so as to achieve

Consumation (final result) with the formation of a

more complete understanding. So each part can only

be understood precisely in the whole context,

otherwise the whole can only be understood based

on an understanding of the parts that make it happen

Hermeneutics is basically a method or means to

interpret symbols in the form of text or something

that is treated as text to search for meaning and

meaning. Where this method requires the ability to

interpret the past is not experienced, as the thought

of Sheikh Muhammad Arsyad Al Banjari about

zakat productive, customs of abstinence (treasure

gono gini), Tabala in the book of Sabîl al-Muhtadîn

as an ijtihad of him which of course the

circumstances of that time we do not experience,

then brought into the present .

More simply in the process of hermeneutics there

are 3 (three) main components in looking at the

Thoughts of Sheikh Muhammad Arsyad Al Banjari

about the zakat are:

the text of giving zakat to the poor can be used

for productive activities is the result of ijtihad

Sheikh Muhammad Arsyad Al Banjari, the reference

books, the opinion of Sheikh Muhammad Arsyad Al

Banjari is about the permissibility of the zakat

portion for the poor and the poor is used for

productive purposes already explained by Ash-

Shafi'i in the Book of Al-Umm, and when further

traced, such an opinion is not much different from

that stated by 'Umar ibn al-Khattab which also refers

to hadith.

Viewed Context at that time the poor faculties

who receive zakat have not been able to utilize the

charity is well feared the recipient of zakat only take

advantage of momentary can not continuously, and

contextualization done synergistically in an effort to

understand, interpret, interpret, as well as to

reconstruct meaning or if it is necessary with the

deconstruction of meaning, of course the recipient of

zakat in Ijtihad Sheikh Muhammad Arsyad Al

Banjari will be more meaningful that the received

zakat must bring benefits that are only used in a

short time but long term so that the ability to utilize

the gift of zakat is not only a recipient of zakat but

than able to give zakat. In principle, the effort of

reconstruction or deconstruction of occasional

meaning is necessary to find a new meaning that is

more in line with the times. Because not infrequently

the meaning of the text at the beginning of its

creation, is not in accordance with the social reality

in the future.

Specific interpretations of the text of the law (eg

documents in the form of manuscripts) are always

related to their content. Because, between the text of

law with the contents of the law complement each

other and strengthen in its function. For example:

The distribution of Zakat for the poor and the poor is

used for productive purposes (in terms of content or

material content), it is the thinking that serves to

create a new law in accordance with justice and

welfare at that time, while the text of thought Sheikh

Muhammad Arsyad Al Banjari (in the sense of legal

form), legally serves to strengthen or reinforce the

content and actions of thought itself .

Similarly, the customary text of the taboo or now

known as the gono gini treasure is the common

property of the husband and wife they earn by

working each and producing during marriage. If one

of them dies or divorce occurs, then his property,

before inheritance, is divided in two first. Half the

treasure is given to his living partner, half of whom

then divided for the heirs according to the provisions

of the applicable fiqh. The custom of the Challenge

(Adat Perpantangan) or Treasure Gono-Gini is not

mentioned either in the Qur'an, Al-Sunnah (hadith)

or the books of Fiqh. This custom of abstinence has

never existed in Islamic history before. This custom

of abstinence is the thought of Sheikh Muhammad

Arsyad al Banjari. In Banjar the division of

inheritance like this has been running for a long time

and is called "adat Perpantangan". In the Acehnese

society this tradition has also lasted a long time

called the "all-treasure" treasure. Adat Perpantangan

is a contextual thought that takes into account Banjar

people at that time who must live from work on the

river, either trading or fishing or fishing. This work

is not only done by a husband alone, but done by

husband and wife together and individually by

dividing the role of the job.

The thought of Sheikh Muhammad Arsyad Al

Banjari about the operation of the corpse. In chapter

janaiz. In this chapter it is explained about

understanding , Sabil Al-Muhtadin Li Tafaqqihi Fi

Umuriddin, (Darul Al-Fikr, t.th, Juz. I), one of

which is burying the dead using a tabala. Sheikh

Muhammad Arsyad Al Banjari explains: "And

makruh again bid'ah planted the dead in the tabala

but because of excuse like a watery ground or on the

land that rupuy or there are women who do not

attend mahramnya or fear of wild animals that

scraped the tomb , then there is no makruh, it is only

mandatory tabala it if the fear of wild animals as the

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470

previous reality ". In general, the Banjar area is

located in the lowlands, so the water is close to the

ground level. It could even have been under water.

Against this condition, burying corpses has

become a habit for the Banjar people by using tabala

as a means to honor and care for the corpse . Thus,

the thought of Sheikh Muhammad Arsyad Al

Banjari relating to burying the corpse by using

tabala is for low areas (swamps), before the corpse is

buried, it is inserted in a chest which the Banjar

people called tabala. Therefore, the size of the

burrow hole (grave) is more narrowly bathed with

grave on high ground or non swamp (usually only

1.5 depax 3 span). Banjar people use tabala to bury

corpses because of the watery soil conditions. But

for non-aquatic lands the Banjar people buried

bodies not using tabala. It is very clear that the

thought of Sheikh Muhammad Arsyad Al Banjari in

burying the corpse by using a kind of casket with the

purpose of benefit.

Thus a valid and valid interpretation of the text

of the law (The Thinking Text of Sheikh

Muhammad Arsyad Al-Banjari) can be categorized

in one corridor of intact interpretation between

explicit and implicit meaning or between the sound

of legal formulation and the spirit of the law. In this

case, the role of language becomes important,

because the accuracy of understanding (subtilitas

intelligent) and the accuracy of translation

(explicandi subtilitas) is very relevant to the law .

In the capacity as a middle-range theory, the

theories of "grundnorm" and "stufenbau des rechts"

make it possible to see the legal position of the text

of the Thoughts of Sheikh Muhammad Arsyad Al

Banjari both in theoretical and procedural contexts.

Because in this study, on the one hand the writer

wants to see whether the Text of Thought Sheikh

Muhammad Arsyad Al Banjari can be qualified as

the highest and final norm or called grundnorm, this

is considering the ability of the Sultanate in

translating and interpreting the command of Al

Qur'an and Hadist in language Malay arabic at that

time still lay so that the existence of thought Sheikh

Muhammad Arsyad Al Banjari becomes light in the

dark meaning of a text. On the other hand, the author

looks at the location and legal position of the

Sheikh's Muhammad Arsyad Al Banjari text of

thought in the regulation hierarchy of the Sultanate

of Banjar at that time. In the perspective of

grundnorm theory it is used in its capacity with the

theory of "the origin of the source of law", while the

stufenbau des rechts are used in its capacity with the

theory of "legislative hierarchy" in a country, so the

thought of Sheikh Muhammad Arsyad Al Banjari

about Zakah and productive customs describes it as

a legal source.

Methodologically, the search for a norm

underlying the lower norm does not persist

indefinitely (regressus ad infinitum). Ultimately

there must be a norm regarded as the highest and

final norm, or until it stops at the highest norm on

which there is no higher norm.

The thought of Sheikh Muhammad Arsyad Al

Banjari at that time is the legal basis that can be

understood by the Sultanate in understanding the

rules of religious principles. The highest norm of

this kind is seen by Kelsen as Grundnorm or Basic

Norm. Grundnorm can not be established by a power

(which of course will require higher norms as the

basis of its authority), but its existence is assumed or

assumed to exist by the sensibilities of the Sultan in

the basis of the regulatory policy drafted by the

Sultan .

According to Kelsen the notion of "Grundnorm"

as it is written in the original book: "Grundnorm

voraussetzt: man soll sich so verhalten, wie die

Verfassung vorschreibt, das heibt: wie es dem

subjectively Sinn des verfassunggebenden

Willensaktes, den Vorschriften des

Verfassunggebers, entspricht. " Max Knight

becomes "The basic norm that one ought to behave

in the constitution of the constitution. "(Grundnorm

is a person who is supposed to act (obey) as

stipulated in the constitution, that is, one should

behave as the subjective meaning of the act / will /

will that constitutes the constitution) . J.H.M.

Klanderman in his book also provides insight into

the conception of Grundnorm Kelsen: "... de

Grundnorm niet een rechtsnorm maar een gedachte

norm is "(Grundnorm is not a legal norm but a

conceivable norm exists in mind).

Thus, the Grundnorm Kelsen refers to the

thought of Sheikh Muhammad Arsyad Al-Banjari on

the Zakat in the Book of Sabil almuhtadin that the

distribution of Zakat for the poor and needy to be

used for productive interest is something that is

assumed, very abstract, and charged with commands

that one should behave as established by a legal

basis. Thus, the Grundnorm is not gesetzt, but

verausgesetzt, and it is not included in the positive

legal order. The grundnorm lies outside and

becomes the foundation of the rule of positive law,

or by another term as "meta juristic".

Regarding the validity of a legal norm, not

because it has a certain content, but because it is

created in the ways defined in what is considered

Grundnorm. Therefore, any content can be the

content of legal norms. Verausgesetzt of Grundnorm

Meaning and Legal Position in Thoughts of Syeikh Muhammad Arsyad Al - Banjari

471

has nothing to do with the recognition of values that

go beyond positive law. The function of Grundnorm

merely provides the basis for the objective

application of a positive rule of law .

Furthermore, Kelsen in his Stufenbau des rechts

or stufenbautheorie theories divide that level of

norm into several layered or gradual layers of stages:

starting from "Grundnorm" (as the highest / last

level of norms, the sense as described above) up to

"norm" (as the level of norms that are below it and

so on down to the lowest level of norm).

Hans Nawiasky, one of Kelsen's disciples

through "Theorie vom Stufenaufbau der

Rechtsordnung", expressed a different view from his

predecessor that the level of norms is divided into

several levels, ranging from:

"Staatsfundamentalnorm" (State Fundamental Norm,

as the highest level of norm) , "Staatsgrundgesetz"

(the Constitution of the State), "Formellgesetz" (Act

in the formal sense), to "Verordnung und

Autonomesatzung" (Regulation of Implementation

and Autonomy Regulations, as the lowest level of

norm).

Abdul Hamid S. Attamimi attempts to compare

between the two opinions above with the illustration

as follows : in this case Nawiasky criticizes Kelsen,

that the highest norm in the state should not be

called "Staatsgrundnorm", but

"Staatsfundamentalnorm". The consideration is that

Grundnorm of a normary order is essentially

unchanged, whereas the supreme norm of a state

may be altered by rebellion, coup d'etat, conquest,

and so on.

The above illustration of Attamimi according to

the author is not clear enough, therefore the author

adds the following understanding: Grundnorm is

different from Staatsfundamentalnorm. The

Fundamental Norms of the State

(Staatsfundamentalnorm) is indeed the highest norm

in a country, but not the same degree as Grundnorm

in the Kelsen sense. Because Grundnorm is

something that is assumed, abstract, universal, and it

lies outside and underlies the legal system, so meta

juristic.

The study of the sources of law in various

literatures varies greatly, depending on the point of

view used by the authors, therefore it takes

carefulness in understanding it. In the context of the

development of jurisprudence, the issue of the

source of law also has a major significance for law-

makers and law enforcers.

Joeniarto shared the notion of the source of law

in three kinds of meaning: The source of law in the

sense as the origin of positive law. The source of the

law in the sense as the forms of law which is also a

place of the discovery of positive law. The source of

law in the sense of things that should be the content

of positive law.

Willem Zevenbergen further classifies the

meaning of the source of the law, namely :

1. The source of the law in the basic sense is known

as the principle of law (rechtsbeginsel), is as

something in the last institution underlying the

law, for example: the will of God, human reason,

the soul of the nation (volksgeist).

2. The source of the law in the former legal sense

and from it is embodied in the present law. For

example fiqih about Zakat, Islamic law which

became the law of the Sultanate.

3. Sources of law in the sense of being a binding

base (de geldingsbron), rule of law such as the

Sultanate, community organizations, and so on.

4. Legal sources may also mean the source of the

legal or kenbronal identifiers, namely in the form

of explanations for the present law and the laws

of the past. The legal identifier (kenbron) is also

said to be "monuments de droit". In this sense the

source of the law is in the form of documents or

events, in which the contents of the law can be

recognized.

5. Sources of law in the sense as a source of

existence or the emergence of law

(oustaansbron), that is as a source for the

existence or the emergence of law.

According to Van Apeldoorn, the source of the

law is used in a variety of ways depending on the

establishment of their respective pen, can be from

the point of history, society, philosophy, and formal

meaning. For the purposes of this writing it is

relevant to borrow a notion of the source of law in

the sense of philosophy which is divided into two

meanings, namely :

1. As a source for the content of the law. In terms

of problems when the content of the law can be

said exactly as it should be? or relating to what

issues are used as a measure to test the law as

(law) is good.

2. As a source for the legal binding force. It relates

to the question of why we should follow the law?

In general the factors of the law's binding force

are due; philosophical, juridical, and sociological

factors.

Regardless of the diversity of the notion of the

source of the law and the definition of the source of

material law that the author sarikan above, it should

be noted Bagir Manan's view that: in studying and

BICESS 2018 - Borneo International Conference On Education And Social

472

studying the source of law requires prudence,

because the term source of law contains various

understandings. Without careful and careful

precision about what is meant by the source of the

law can lead to errors, even misleading.

After the theory of hermeneutics and

stufenbautheory successfully used as a knife analysis

to find the meaning and legal position of the text of

Sheikh Muhammad Arsyad Al Banjari Thinking, the

theory of legal sources will easily determine whether

the Text of Thought Sheikh Muhammad Arsyad Al

Banjari can be qualified as a source of legal law or

formal legal source .

Exploring the meaning of the text of the thought

of Sheikh Muhammad Arsyad Al Banjari, the

authors affirm that the thing to be interpreted is a

unity between the "script" and "thought" it. Because

the thought of Sheikh Muhammad Arsyad Al

Banjari reflects the political action that created the

law (Rechtscheppen), while the text serves as a legal

proof (Rechtsvastellen) for the use of the thought of

Sheikh Muhammad Arsyad Al Banjari. So the

understanding of the Text of Thought Sheikh

Muhammad Arsyad Al Banjari in the corridor of an

inseparable unity between the two elements. After

the author looks at the structure of sentences and the

use of language (legal language) from the Text of

Thought Sheikh Muhammad Arsyad Al Banjari

about productive Zakat, custom parpantangan, and

the use of that tabala. This is in line with his theory

that the object of hermeneutical philosophical

reflection is language (in the form of spoken

language, writing, nature, body, art, and other types

of languages).

The thought of Shaykh Sheikh Muhammad

Arsyad Al Banjari About Zakat in the Book of Sabîl

Al-Muhtadîn The distribution of Zakat for the poor

and indigent is used for productive, customary

purposes which illustrates the fulfillment of the

principles of justice and the use of the tabala for the

corpses to be buried in the watery areas, carefully

examined on the basis of an apodictic proposition

which is the necessity of truth from the explanation

given by predicate to the subject on the basis of

reason associated with the theory of speech acts in

the classical version , Zakat clearly productive ,

illustrated by a command of God or a book of

command of believers or people to obey His

command, then there are three important thoughts

about productive zakat, described in Sabîl al-

Muhtadîn which is not described in ash- Shirâth al-

Mustaqîm. First, the recipient of zakat does not only

use the part of zakat for the purposes of temporary

or cosumtif, the two divisions of zakat may be

developed on the productive so that the recipient of

zakat who can not utilize the zakat part can continue

to use it. Third, by being allowed to be used for

productive things and developed then that was only

the recipient of zakat can also be a giver of zakat. If

so, then by the law of fiction, highlighting the

instruction of what consequences, move the

modified state into a relative clause . One can

observe this will be a divine echo. The thought of

Sheikh Muhammad Arsyad Al Banjari glorifies the

power of the word Zakat as the command of God

becomes lighter. He no longer has to instruct people

on how to share and use the results of zakat; that

paying Zakat demonstrates the Law's obedience,

articulating its power of what it will bring about in

the world within the framework of Zakah benefits.

Sheikh Muhammad Arsyad Al Banjari in his

thoughts about parpantangan, parpantangan or

introspection is customary law in Borneo or South

Kalimantan now with respect to the property of

husband and wife. The word parpantangan comes

from the word abstinence or pintang in Banjar.

Bapintangan or bapapintangan have opposite

meanings, meaning is dealing equally in comparison

between two circumstances , where he observes the

difference of family life of Arab society and then

compare it with family life of Banjar society at that

time which is external factor in his thinking. Wives

in Arab society generally do not work. They are

entirely the responsibility of her husband and are

only obliged to decorate and serve her husband, so

that in general wealth which is obtained during life

as husband and wife is the result of husband's

business. Therefore, if her husband died then the

wife only gets a certain part according to the law of

fara'id only. In contrast to the Arab community, in

Banjar Sultanate society at that time and in effect

today in South Kalimantan, especially in the area

around the residence Sheikh Muhammad Arsyad Al

Banjari namely In Pagar Village, not only head of

the family who make a living to meet the daily needs

family, husband and wife share the role in earning a

living according to their ability.

By using jukung (a small boat without a motor

with a rowing driver) , they are riding shoulder

paddle along the Martapura River to bring

merchandise to the market, search for wood, fish,

and so on. Seeing the reality of both working

together, Sheikh Muhammad Arsyad al-Banjari

considered it unfair if women in the end did not get a

share of the hard work. The Qur'an is revealed in the

Arab lands, where women do not work to help their

husbands to provide for their household needs, not to

mention the issue implicitly and explicit ly.

Meaning and Legal Position in Thoughts of Syeikh Muhammad Arsyad Al - Banjari

473

Therefore, Sheikh Muhammad Arsyad al-Banjari

argues that women should be given, at least, half of

the wealth they get with their husbands.

Occurrence of working wife culture does not

occur immediately. There are at least two factors

that encourage the culture. Among these are the

social factors in which the position of women and

men of Banjar society is considered equal and the

existence of economic factors. The economic life of

the Banjar people in the past was closely related to

the state of nature. Banjar communities, especially in

the past, have been living in river valleys, such as

the Martapura River, Nagara River, Tapin River, and

others. The rivers are relatively fast and influenced

by the tidal currents of sea water so easily accessible

from the Java Sea. This of course causes the

concentration of the population to occur in these

areas, which are generally in the form of swamps .

The natural situation in the form of swamps and

surrounded by the river caused some people to work

as fishermen of freshwater fish.

In addition, trade is also one of the main

livelihoods of Banjar people. The economic

condition of Banjar society in the past is highly

dependent on the natural conditions caused the

uncertainty of income earned. In addition, the main

route of transportation that they must travel to both

fish and trade is the river. To pedal down the river

would require a lot of energy. This then causes the

income that is only obtained by the husband is often

not sufficient, so eventually the wife worked.

There are a number of factors affecting Shaykh

Muhammad al-Banjari Arsyad in eliciting thoughts

about parpantangan In this case, those factors can be

grouped into two groups, namely internal factors and

external factors. Internal factors that are intended in

this paper is related to his personality and way of

thinking that is open to the locality is stated in his

thoughts. The external factor in question is the

condition of the Banjar community in South

Kalimantan, especially in Kampung Dalam Pagar

area, where he lives.

Thought Sheikh Mohamed Arsyad Al Banjari on

Tabala about the use of Tabala makruh again bid'ah

planted the dead in the tabala but because of aging

such as watery land or on land that no bodies were

rupuy or women who do not attend mahram or fear

of wild animals that scrape the dirt grave it is not

makruh, it is only mandatory tabala it if the fear of

wild animals as the previous reality.

It is very clear that the thought of Sheikh Sheikh

Muhammad Arsyad Al Banjari in performing the

burial of the corpse by using a kind of casket with

the purpose of benefit. And in Islamic law this is

rukhsah given by God if human experience

difficulties in running his shari'ah. All forms of

conveniences including rukhshah that gives

spaciousness in human life, and in fact there is no

rukhshah shall not be lost one of the elements that

dharuri it, but people will be in trouble . Thus the

thought of Sheikh Muhammad Arsyad Al Banjari

can be collected that the aim is a form in the level of

hajiyat.

The legal implications of the text of the Thinking

Sheikh Muhammad Arsyad Al Banjari as a source of

reference here is more directed to the discussion of

its existence as the foundation for the establishment

of the positive law of Banjar Sultanate. We know

that the limitations of jurisprudence at that time are

still very limited, at once there has been the creation

of a new law, even though the written positive law

has not yet been established. Since then the previous

legal order was ignored and built on it a new legal

order namely the legal system of the Sultanate of

Banjar. One day later, the Sultanate's administrative

system and its positive legal order began to be built,

and so it proceeded and worked on until now.

In the previous section it has been discussed that

in the Sultanate of Banjar the legal position of the

Text of Thought Sheikh Muhammad Arsyad Al

Banjari can be qualified as Grundnorm (but not in

the sense of Kelsen). Where, the location of

Grundnorm is not on the Text of Thought Sheikh

Muhammad Arsyad Al Banjari, but on the spirit and

soul it contains. Because the spirit of Islam in the

thought of Sheikh Muhammad Arsyad Al Banjari in

the form of the principle of help, solidarity,

prosperity, and justice, is universal, abstract, and

meta juristic nature.

The thought of Sheikh Muhammad Arsyad Al

Banjari in that sense can be used as a source of

material law and / or the source of all sources of

formal law. The logical explanation is why people

obey the rule of law in social intercourse between

them, because there is a regulation that binds it, why

people obey the rules, because there is a legal source

that regulates it, while the source of law is the norm

that is considered the highest and used by the Sultan

in the provisions regulation of the Sultanate of

Banjar. The next question is where the source of

binding power and the validity of the source of the

law, the answer is because there is Grundnorm. The

sultanate of Banjar Grundnorm lies in the spirit and

soul of Islam itself. Therefore, should people respect

and obey what is poured in the Thought Sheikh

Muhammad Arsyad Al Banjari as a source of law.

BICESS 2018 - Borneo International Conference On Education And Social

474

5 CONCLUSIONS

Based on the results of research and analysis of some

key issues that have been put forward earlier, then

the conclusions can be submitted as follows:

Meaning of Script Thoughts Sheikh Muhammad

Arsyad Al Banjari is an Islamic fiqih script about

productive zakat, custom parpantangan and the use of

tabala in the policy practice of the Sultanate of

Banjar as a nation. While the freedom of the nation in

free religion is a nation free from all imperialist, and

free and independent to determine, organize and

manage the state according to the purpose of its

source of law, although at that time the struggle for

imperialism was a threat to the banjar empire.

The legal position of the text of the Thought

Sheikh Muhammad Arsyad Al Banjari in

Stufenbautheorie's perspective: First, the text of

Sheikh Muhammad Arsyad Al Banjari can not be

qualified as Grundnorm in the sense of Kelsen. As

for the case in the Sultanate of Banjar, the values,

principles, and principles contained in the Text of

Thought Sheikh Muhammad Arsyad Al Banjari

domiciled as Grundnorm. It is the source of all

sources of law and its existence exists outside the

legal system (meta juristic). Everybody should

respect and obey what is stipulated by the Text of

Thought Sheikh Muhammad Arsyad Al Banjari

especially about Zakat. Secondly, the Text of

Thought Sheikh Muhammad Arsyad Al Banjari can

not be qualified as Staatsfundamentalnorm in the

sense of Nawiasky. As for the case in the Sultanate of

this Banjar, Staatsfundamentalnorm it is the Book of

Sabil Al Muhtadin, in which has the rules of Fiqh

about Zakat that deliver a just society and prosperity.

In the perspective of the theory of the source of law

as well as in the government of Banjar Sultanate:

substantively, the rules contained in the Text of

Thought Sheikh Muhammad Arsyad Al Banjari can

be qualified as a source of material law. While

formally the legal position of the text of Thought

Sheikh Muhammad Arsyad Al Banjari has not got a

place in it.

The legal implication is that the text of Sheikh

Muhammad Arsyad Al Banjari is a source of

inspiration, reference and judgment (criticism) for the

Sultanate of Banjar in making the provisions of the

Sultan's regulations and policies in the life of the

nation and the state.

SUGGESTION

From the above three conclusions after reflection we

can benefit from abandoning disciplinary ambitions

and interdisciplinary claims as being capable of

conveying an analysis and institutional priority. The

suggested term as a substitute is the simpler

"infradisipliner", which has the virtue of generating

a pre-disciplinary future that we sometimes boast

about.

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